1984 P Cr (PLP)

3. The F.I.R. was recorded by Muhammad Sutleman A.S.I. at 9.30 p.m. The A.S. I. examined injuries on the head of complainant and prepared Mashirnama and referred him to Taluka Hospital Mehar for examination, treatment and certificate. He then proceeded to the Vardat but could not conduct the investigation as it was night time and therefore posted a guard over the dead body. On the next morning, the A.S.I. saw the Vardat as well as the dead body. He prepared the Mashirnama of Vardat and also inquest report in presence of Mashirs Ahmed and, Muhammad Hashim. He sent dead body to Taluka Hospital Mehar through P.C. Sohrab Khan for post-mortem examination, and then examined P.Ws. Roshan, Ramzan, Umar and Muhammad Qassim. On the same day, the A.S.I. arrested appellant Muhammad Saleh from the village, who on interrogation produced hatchet voluntarily. On 5th March, 1979, police got 164, Cr.P.C., statements recorded of P.Ws. Roshan and Ramzan from the Court of Civil Judge and F.C.M. Mehar, Finally the case was challaned on 17th March, 1979.

4. The prosecution examined in the Court (1) P.W. Sohrab Khan P.C. Exh.7, who had taken the dead body for post-mortem examination, (2) Muhammad Moosa Tapedar Exh. 8, who produced sketch of Vardat Exh.9, (3) Complainant Muhammad Moosa Exh.10, who produceo F. I. R.- Exh.11 , (4) P.W. Muhammad Umar Exh.12, (5) Dr. Khan Muhammad Exh. 14, who produced post-mortem notes Exh.15 and injury certificate of complainant Muhammad Moosa Exh.16, (6) P.W. Roshan Exh.17, (7) P.W. Muhammad Ramzan Exh.18, who produced original 164, Cr.P.C. statement Exh.19, (8) P.W. Muhammad Qassim Zamindar Exh.20, (9) A.S.I. Muhammad Sulleman Exh.21, who produced Mashirnama of injuries on the person of complainant Muhammad Moosa Exh.22, Mashirnama of Vardat Exh.23, inquest report Exh.24, Mashi.rnama of arrest of appellant Exh. 25, Mashirnama of securing of hatchet from appellant Exh.26, Chemical Analyser Exh.27,(10) Mashir Bashir Ahmed Exh.28. The learned A.P.P. gave up P.W. Pirbhulal Civil Judge and F.C.M., Mehar vide statement Exh.13 and close the side of the prosecution vide statement Exh.29.

5. The appellant did not plead guilty to the charge Exh.2 and claimed to be tried. In his statement Exh.30, he denied the allegation against him. According to him the hatchet has been foisted upon him and he has been involved falsely, at the instance of Zamindar Wadero Muhammad Qassim, who wanted that he (i.e. appellant) should leave his harp. The appellant did not examine any witness in defence, vide his plea Exh.31.

6. I have heard the learned Advocates for the appellant as well as the State and have gone through the evidence adduced before the learned trial Court and have also gone through the authorities cited by the learned Advocate for the appellant. 7.The learned Advocate for the appellant in support of above appeal submitted as under:- (a) There was delay in lodging of F. I. R. which has not been satisfactorily explained. (b) According to P.W.3 Muhammad Moosa, his F.I.R. was not read over to him and I.O. stopped writing said F.I.R. as soon as he mentioned the name of P.W. Muhammad Kassim and went out to see P.Ws. Muhammad Hashim, Moalim Ayub and Bashir Ahmed and after talking to them came back and started writing F.I.R, which he did not read over to him. In view of this no reliance at all can be placed on such F.I.R. (c) Prosecution examined P.W.3 Muhammad Moosa, P.W.6 Roshan and P.W.7 Muhammad Ramzan as alleged eye-witnesses of the incident. Out of these witnesses P.W.3 Muhammad Moosa is brother of the deceased and P.W.6 Roshan is Hari of P.W. Muhammad Kassim, whereas P.W.7 Muhammad Ramzan did not support the prosecution case at all about the incident. In view of the statement of appellant under section 342, Cr.P.C. that he has enmity with P.W. Muhammad Kassim as he has refused to vacate his land, which fact is admitted by P.W.8 Muhammad Kassim in his statement before the learned trial Court, no reliance can be placed on the evidence of P.Ws. 3 and 6 without independent corroboration, which is not at all available in present case, as prosecution reliance on the statement of P.Ws Muhammad Kassim and P.W.4 Muhammad Umar for such corroboration has no force, as admittedly P.W.8 Muhammad Kassim has enmity with appellant on his refusal to vacate the lands of said P.W.8. P.W. 4 Muhammad Umer is labourer of P.W. Muhammad.Kassim and as such both of them cannot be considered as independent witnesses at all. (d) P.W.7 Muhammad Ramzan allege Mashir of the arrest of appellant and recovery of hatchet at the instance of appellant and allege eye-witnesses of the incident has not at all supported prosecution case about the incident and recovery of hatchet at the instance of appellant. Beside this Chemical Examiner Report Exh.27, is not positive in view of these pieces of evidence cannot be relied upon for purposes of corroboration of prosecution case, as it has been done by learned trial Court. (e) No reliance at all can be placed on statement of P.W.8 Muhammad Kassim for purposes of corroboration under section 157 of Evidence Act, as on his own admission he returned to his house 8.00 p.m. and then it it is alleged he was told facts of incident by P.W.3 Muhammad Moosa, i.e. after lapse of 516 hours of the incident. In support of this contention the learned Advocate for the appellant relied upon cases. P L D 1969 S C 127 and 1974 P Cr. L J 77. (f) No reliance at all can be placed on statement of P.W.6 Roshan, as he is liar and denied that he was Hari of P.W.8 Muhammad Kassim, without any independent corroboration. In support of this contention the learned Advocate for the appellant relied upon case reported in P L D 1974 Kar. 274, 1979 S C M R 214 and P L D 1981 Kar. 1. (g) There are material contradiction between the statements of P.Ws and I.O. about the way dead body was lying on Vardat P.Ws. state on ground, whereas I.O. stated that the same was lying on cot. Prosecution did not examine Civil Judge and F.C.M., Mehar, who allegedly recorded 164, Cr.P.C. statements of P.Ws Roshan and Muhammad Ramzan and as such, assertions made by P.W. Muhammad Ramzan in his statement before the learned trial Court, the manner in which his 164, Cr.P.C. statement was recorded stands unrebutted and throws doubts the honesty of investigation of the case in question.

8. The learned Advocate for the appellant in view of his above submissions stated, that no reliance can be placed on the evidence produced by prosecution and as such appellant is entitled to acquittal.

9. The learned Advocate appearing for the State submitted, that he does not support the impugned judgment as prosecution has failed to prove its case beyond reasonable doubt against the appellant, on the basis of the submissions made by the learned Advocate for the appellant. I.O. I have carefully considered the submissions made by the learned Advocate for the appellant and have gone through the statements of P.Ws. as well as impugned judgment and have also considered various authorities cited by the learned Advocate for the appellant.

11. There is admittedly delay of 5/6 hrs, in lodging of F. I. R. Exh.11, which has not been explained satisfactorily. Besides this, the manner in which said F.I.R. was recorded by police, as stated by P..W. Muhammad Moosa, throws doubts about the veracity of the facts mentioned in the said F.I.R. and possibility of false implication of the appellant at the instance of P.W.8 Muhammd Kassim and his brother P.W. Muhammad Hasham cannot be ruled out. There is admitted enmity between appellant and P.W. Muhammad Kassim on account of appellant refusal to vacate lands of said witness and as such his evidence on this account and evidence of P.Ws. Muhammad Umer, Roshan and Bashir Ahmed (Mashir), who are Haris and/or employees of P.W.8 Muhammad Kassim cannot be considered as evidence of independent witnesses for purposes of corroboration of P.W.3 Muhammad Moosa the complainant, and brother of the deceased. The contentions of the learned Advocate for the appellant to disregard the evidence of P.W.8 Muhammad Kassim for purposes of corroboration, in view of cases P L D 1969 S C 127 and 1974 P Cr. L J 77 has great force. Similarly no reliance even otherwise can be placed on the statement" of only other eye-witness P.W.6 Roshan for the reasons given by ore learned Advocate for the appellant in view of cases P L D 1974 Kar. 274 and 1979 S C M R 214, with which I am in respectful agreement for reasons given in the said judgments. Reliance placed by the learned trial. Court for purpose of corroboration on alleged recovery of hatchet in face of negative report of the Chemical Examiner is also erroneous. Story of the prosecution, that deceased was being taken to police station in bullock cart, but as he died on the way, he was brought back to Vardat is also not convincing, in view of the statement of P.W.5 Dr. Khan Muhammad that death would have been instantaneous.

11. Keeping in view about facts and my conclusions and findings as mentioned in preceding para it would not be safe to rely on the evidence of P.Ws in question without independent corroboration and as such in my opinion prosecution has failed to establish its case against the appellants beyond reasonable doubt.

12. Therefore I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him, by giving him benefit of doubt. I direct that appellant be released forthwith, if he is not required in any other case. S.G.D. Appeal allowed.